Williams v. Commonwealth

• Decision Date: 02 June 2020
• Docket Number: Record No. 0811-19-2
• Court: Virginia Court of Appeals
• Parties: AL MARTINO WILLIAMS v. COMMONWEALTH OF VIRGINIA

AL MARTINO WILLIAMS v. COMMONWEALTH OF VIRGINIA

Record No. 0811-19-2

COURT OF APPEALS OF VIRGINIA

JUNE 2, 2020

UNPUBLISHED

Present: Judges Humphreys, Huff and Malveaux

Argued by teleconference

MEMORANDUM OPINION^* BY JUDGE MARY BENNETT MALVEAUX

FROM THE CIRCUIT COURT OF LUNENBURG COUNTY

S. Anderson Nelson, Judge

Buddy A. Ward, Public Defender (Sandra Saseen-Smith, Deputy Public Defender, on brief), for appellant.

Rosemary V. Bourne, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Al Martino Williams ("appellant") was convicted of possession of a firearm by a convicted violent felon, in violation of Code § 18.2-308.2(A), possession with the intent to distribute a controlled substance, third offense, in violation of Code § 18.2-248(C), possession with the intent to distribute marijuana, in violation of Code § 18.2-248.1(a)(2), and possession of a firearm while in possession of a controlled substance, in violation of Code § 18.2-308.4(A). On appeal, he argues that the trial court erred in denying his motion to suppress evidence found as a result of a search of his residence on the grounds that the officers seized the evidence in violation of his Fourth Amendment rights. For the following reasons, we affirm.

I. BACKGROUND

Deputy Christopher Wallace of the Lunenburg County Sheriff's Office received information that there was "heavy traffic coming in and out of appellant's residence.¹ Wallace was working with the Tri-County Drug and Gang Task Force when he received this information. After reviewing court records, Wallace determined that appellant had entered into "a Fourth Amendment waiver" pursuant to a September 16, 2008 sentencing order from the Circuit Court of Lunenburg County.

The Commonwealth introduced the September 16, 2008 sentencing order into evidence at trial.² The order reflected that appellant had been convicted of four counts of distribution of a controlled substance, in violation of Code § 18.2-248(C), and sentenced to a total active sentence of seven years' incarceration with seventy-three years suspended. It stated that the court had "[s]entence[d] [appellant] according to the plea agreement."³ The order also included a section titled "Search and Seizure" that provided as follows:

Commencing upon his release [appellant] will allow law enforcement officers to search his residence and curtilage, and stop and search any motor vehicles and his person at any time and will permit the seizure of any illegal substances or evidence of any crime. Law enforcement will limit such requests to Six (6) times per year for Five (5) years.

Deputy Wallace testified that he "believe[d]" appellant had been released from incarceration "sometime in December of 2014."

Wallace testified that he had not previously investigated appellant. He further stated that he had not seen appellant since 2016 when appellant's son was killed. He stated that if a search had been done on appellant's home by the Lunenburg County Sheriff's Office, it would have been recorded by that office. Wallace admitted that prior to the search he had not had any conversations with any other law enforcement agencies to check whether they had any open investigations on appellant. He testified that he did not know whether the FBI, ATF, state police, a multi-jurisdictional task force, or an out-of-state law enforcement agency had conducted a Fourth Amendment waiver search of appellant's residence as there was "no database for that purpose." Wallace did note that there was a "state reporting system" which would indicate if there had been "[a] case made" against appellant.

Relying on the Fourth Amendment waiver contained in the September 16, 2008 sentencing order, Deputy Wallace and other officers conducted a search of appellant's residence on March 9, 2019. Wallace had not obtained a search warrant prior to the search of the home. Wallace approached the residence and pushed open the door, which was "cracked open," and he saw appellant and his son in the kitchen. Wallace told appellant that he and other officers "were there to conduct a Fourth Amendment search of his house" and gave appellant a copy of the September 16, 2008 court order. Appellant did not try to prevent the search after being informed that the search was being conducted pursuant to the waiver contained in the sentencing order.

During the search of appellant's home, Deputy Wallace found a bag of powder cocaine and a bag of cocaine rocks inside a cereal box sitting on the kitchen counter. Officers also found plastic bags containing marijuana, a handgun, $1,887 in currency, and a set of scales.

Special Agent Jason Lacks of the Virginia State Police was also present during the search of appellant's home. While at the residence, Lacks advised appellant of his Miranda⁴ rights.Before Lacks started to question appellant, appellant told Lacks that "[i]t's all mine" and that his son "had nothing to do with it." Appellant asked Lacks what items he had found. Lacks told him that he had found a gun, cocaine, scales, and marijuana. Appellant again stated, "It's all mine." Appellant also admitted to Wallace "that he had just cooked" crack cocaine prior to the officers' arrival.

Following the Commonwealth's case-in-chief, the parties presented argument on appellant's motion to suppress. Appellant asserted that the search of his residence violated the Fourth Amendment, because his Fourth Amendment waiver was limited to six searches per year for five years following his release from incarceration, and there was no evidence that this limit had not been reached prior to the March 9, 2019 search. In response, the trial court stated, "I thought [Deputy Wallace] said they checked, and it said they had not -- the task force had not. He said there was no database to go to to confirm that." Counsel for appellant replied, "Correct. . . . The first part of the paragraph says, [']Will allow law enforcement officers.['] It doesn't limit it [to] Lunenburg or task force or localities. And [Deputy Wallace] specifically said, I don't know whether or not there were any other investigations, whether or not there was a federal search . . . ."

The trial court denied the motion to strike, finding that

the provision is applicable to [appellant], and would allow -- the only real problem I have, and I'll tell you that's based also on the fact the officer indicated that when he went to the house, he gave him the order, showed him why he was there, [appellant] made no objection. He didn't have to. I'm not holding that against him, but that is part of the circumstances that I am relying on.

So therefore, I do find that the search was reasonable. The only thing that gives me any pause at all, quite frankly, is the issue that's been raised to me before, and that's the fact that how do we know how many times he was searched in the last year -- or in that particular year? What I do know is that the officer testified that Lunenburg County had not searched at all that year. This was inMarch, and the Court is going to take that to -- is going to find, from that evidence, that he had not exceeded the number of times.

So I'm going to overrule your motion to suppress.

Appellant was found guilty of possession of a firearm by a convicted violent felon, in violation of Code § 18.2-308.2(A), possession with the intent to distribute a controlled substance, third offense, in violation of Code § 18.2-248(C), possession with the intent to distribute marijuana, in violation of Code § 18.2-248.1(a)(2), and possession of a firearm while in possession of a controlled substance, in violation of Code § 18.2-308.4(A).⁵

This appeal followed.

II. ANALYSIS

On appeal, appellant argues that the trial court erred in denying his motion to suppress because the Commonwealth failed to prove that the search of his home, and the subsequent seizure of evidence from it, were within the parameters of the Fourth Amendment waiver as set forth in his plea agreement.⁶

In Virginia, it is well established that "[a]t the initial hearing on a motion to suppress, the Commonwealth 'carries the burden of showing that a warrantless search and seizure wasconstitutionally permissible.'" Cole v. Commonwealth, 294 Va. 342, 354 (2017) (quoting Jackson v. Commonwealth, 267 Va. 666, 673 (2004)). However, "[u]pon review of the [trial] court's denial of a suppression motion, 'the burden is upon [the appellant] to show that the ruling, when the evidence is considered most favorably to the Commonwealth, constituted reversible error.'" Hill v. Commonwealth, 68 Va. App. 610, 616-17 (2018) (third alteration in original) (quoting Andrews v. Commonwealth, 37 Va. App. 479, 488 (2002)), aff'd, 297 Va. 804 (2019).

"On appeal of the denial of a motion to suppress, we view the evidence in the light most favorable to the Commonwealth." Carlson v. Commonwealth, 69 Va. App. 749, 757 (2019) (quoting McCracken v. Commonwealth, 39 Va. App. 254, 258 (2002)). This Court is "bound by the trial court's findings of historical fact unless plainly wrong or without evidence to support them." Matthews v. Commonwealth, 65 Va. App. 334, 341 (2015) (quoting McGee v. Commonwealth, 25 Va. App. 193, 198 (1997) (en banc)). "This standard [also] requires us 'to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.'" Commonwealth v. White, 293 Va. 411, 414 (2017) (quoting Evans v. Commonwealth, 290 Va. 277, 280 (2015)). "However, the Court reviews de novo the overarching question of whether a search or seizure violated the Fourth Amendment." Williams v. Commonwealth, 71 Va. App. 462, 475 (2020).

The Fourth Amendment guarantees, in relevant part, "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. "[S]earches and seizures inside a home without a warrant are presumptively unreasonable." Kentucky v. King, 563 U.S. 452, 459 (2011) (quoting ...